State ex rel. Witter v. ForknerState ex rel. Witter v. Forkner
- Reporters:
- ,
- Before:
- Deemer
Lead Opinion
-The plaintiff’s petition is in the usual form of such papers, alleging that defendant Moore is the owner, and defendant Forkner the occupant of a building in the city of Des Moines wherein intoxicating liquors were sold, and kept with intent to be sold, contrary to law, by the said Forkner, with the knowledge and consent of Moore. The petition further alleges: That chapter 62’ of the Acts of the Twenty-fifth General Assembly, familiarly known as the “Mulct Law,” is unconstitutional and void in this: that the act is in.’ conflict with article 6, section 1, article 4, section 16, and article 9, part 2, section 4, of the constitution, and of an alleged amendment to the constitution adopted June 27, 1882; that the said enactment is invalid because the operation thereof in Polk county is made to depend upon the consent of a portion of the citizens of Polk county, beause it confers upon a portion of the citizens of Polk county the right to> make the laws of Iowa, because it attempt® to confer on a portion of the citizens of Polk county the right to suspend legal penalties and bar proceedings under the law prohibiting the safe of intoxicating liquors, and because the whole subject of the act is not embraced in the title. The petition further charges that a certain statement of consent, in pretended compliance with section 17 of the act before referred to, has been filed in the office of the county auditor, but that such statement is not in compliance with the act, in that it is not in proper form, and is not verified as required by the statute, and that it is not signed by a majority of the citizens residing in the city of Des Moines who voted at the last preceding general election. It further alleges that defendant Forkner has paid the tax required by the act in question, and that he is not a registered pharmacist.. The defendant Forkner admits in his answer that at the time of *4the commencement of this suit he was conducting a saloon at the place in question, but denies all other statements and conclusions in the petition, and avers that he is complying with all the provisions of the act of the Twenty-fifth General Assemblyin question. The case upon the issues thus joined, was tried to the court on the following stipulation of facts: “First. Defendants admit the establishment of a place for the sale of intoxicating liquors at the time and place charged in the first paragraph of plaintiff’s petition, and the sale of intoxicating liquors, but deny that the same was illegal, and claim the right to establish said place for the sale of intoxicating liquors under the provisions of chapter 62 of the Acts of the Twenty-fifth General Assembly of the state of Iowa. Second. The allegation of the petition that the petition filed with the auditor of Polk county was not signed by a majority of the legal voters voting at the general election held previous thereto is withdrawn, and no issue is made in relation thereto, and defendants shall not be required, for the purposes of this cause, to prove compliance with the said act of the Twenty-fifth General Assembly, except to the form and verification of the petition. It is further admitted that the petition or statement of consent filed with the county auditor consists of thirty-one parts, and that the form of verification attached to all but four of said parts is a typewritten, blank form filled out by the notary public, and is in form as set out in defendant’s amendment to their answer, and that, without the petitions with the typewritten forms of verification, a majority of the resident voters’ names would not be on said petition.”
It appeal’s that.in the court below some question was made regarding the sufficiency of the statement of consent filed with the county auditor, under the provisions of the act in question. But the point is not *5referred to in the printed briefs,, and was merely suggested by counsel for appellant in oral argument, haJd before us, at the time of submission of the cause. We do not understand counsel are insisting upon these alleged defects, in this court, and will give them no further consideration.
The questions presented by this appeal relate, then, solely to the constitutionality of the aict under which defendant Forkner is conducting his business‘. W‘e may premise our discussion of the catse by saying that we undertake the solution of the problems presented with full knowledge of the grave responsibility cast upon us, and of the importance of the questions involved, and shall endeavor to look at the matter in the light of certain elementary principles, of which courts must ever be mindful. Among these are that legislative power is primarily plenary, and that state constitutions are not grants off, but limitations upon, that power, and he who would challenge a legislative enactment must be able to specify the particular provision of the constitution which deprives the legislature of the power to pass the act; that it is the duty of the court to reconcile statutes with the constitution, when it can be done without doing violence to the language off either-; and that in all cases of doubt the doubt must be resolved in favor of the constitutionality of the statute It is likewise true that the constitution is a shield which the state, in its sovereign capacity, has provided for the protection of public and private rights; that unrestricted legislation is inimical to both public and private rights; and that it is our duty to see that no legislation is enacted w hich improperly intrenches upon the constitutional rights of the whole people, or of the individual, or his property.
*6
In the case of City of Des Moines v. Hillis, 55 Iowa, 643, this court, in construing chapter 56, Laws 1878, authorizing cities to provide by ordinance for payment of salaries to their officers, in lieu of fees theretofore retained by such officers under prior statutes, held the act was not void as a delegation of the power of legislation to the cities, Justice Beck using this language: “Counsel insist that the act in question is void for-the reason that the provisions as to the salary of the officers can only take effect upon the vote of the city council, — a law of the state thus made dependent upon the action of a municipality, which, it is insisted‘, is in conflict with the constitution. The statute confers’ authority, to be exercised at their discretion, upon city councils. They may execute the power’ conferred, or withhold its execution. That is all there is of it. The city has authority from the state to pass the ordinance. Surely it cannot, with fairness, be said that the operation of, and validity of, the statute depend upon the action of the city.” This, we believe, is the latest expression of this court on the subject now under consideration, and it is directly in line with the views heretofore expressed in this opinion.
*13That it is competent for the legislature to empower municipalities to make ordinances and adopt regulations for controlling, licensing or prohibiting the traffic in intoxicating liquors, is plain, and is not questioned in this case. It is entirely in accord with the principle of local self-government that the power to enact police regulations on matters so closely connected with the good order and prosperity of a city should be lodged with those best qualified to judge of measures adapted to meet the emergencies off these particular situations1. And it is competent for the legislature, in its wisdom, to invest them with the authority necessary to the administration of the special purposes of their creation. As said by Judge Cooley in his work on Constitutional Limitations (6th Ed.) pp. 144,145: “Municipal charters refer most questions of local government, including police regulations, to the local authorities, on the supposition that they are better able to decide for themselves upon the needs as well as the sentiments of their constituents than the legislature can possibly be and are therefore more competent to judge what local regulations are important, and also how far the local sentiment will assist in their enforcement. The same reason would apply in favor of permitting the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing less extensive powers of local government than a municipal charter would confer; and the fact that the rule of law on that subject might be different in different localities, according as. the people accepted or rejected the regulation, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal corporations establish for themselves in the exercise of am undisputed authority.” See, also, State v. Noyes, 10 Fost. (N. H.) 279; Beach, Pub. Corp. section 72; State v. Wilcox, 42 Conn. 364; *14Tiedman Lim. p. 638; Black Intox. Liq. section 217; Dil lon Mun. Corp. sections 9, 44, and authorities cited. The policy of creating local public and municipal corporations for the management of local concerns runs back to the earliest period of our colonial history. It is exhibited in all our legislation, and expressly or impliedly guarantied by our state constitutions. Commonwealth v. Roxbury, 9 Gray, 503. See, also, the learned opinion of Judge Cooley in People v. Hurlbut, 24 Mich. 44, wherein he treats of the history of towns and townships, their place in our system of government, and their rights of local self-government. See, also, State v. Pond, supra; Commonwealth v. Bennett, 108 Mass. 27; Savage v. Commonwealth (Va.) 5 S. E. Rep. 565; and the learned decision of the subject in State v. Circuit Court of Gloucester Co. (N. J. Err. & App.) 15 Atl. Rep. 272; Clark v. City of Rochester, 28 N. Y. 605. In the case of Commonwealth v. Bennett, supra, it is said: “It is equally within the power of the legislature to authorize a town, by vote of inhabitants,’ or city, by vote of the city council, to determine whether the sale of a particular kind of liquors within its limits shall be permitted or prohibited. This subject, although not embraced within the ordinary power to make by-lawsi and ordinances, falls within the class of police regulations which may be intrusted by the legislature to municipal authority.” It is useless to cite additional authorities, many of which are in the books, upon these propositions, for the doctrine is already the established rule in this state. In the case of Morford v. Unger, 8 Iowa, 82, the principle is recognized, and applied to a statute which provided that it should not go into effect until accepted by the city council of the city of Muscatine. And in the case of State v. King, 37 Iowa, 462, it is said: “Counsel maintain that the law conferring the power to. pass the ordinance in question is, under the decision *15of this court, unconstitutional, on the ground that it is a delegation of legislative authority to cities and towns, enabling them to make laiw. And this it certainly is.But cities and towns do have legislative authority, and it is delegated to them by the state; yet ordinances made in pursuance thereof, if within the authority conferred, and not in conflict with the constitution, have always been sustained. It is the doctrine of this state that the general assembly cannot delegate to the people the right to make or repeal a law; that statutes or parts of statutes which are made to depend for their validity upon a popular vote are unconstitutional. But it never ■has been held that) the state cannot delegate legislative power to municipal corporations, within proper bounds.”
Turning now to the act under consideration, we find that the bar to proceedings, under the prohibitory liquor laws cannot become effective unless the. saloon is located in an incorporated town or city, and not then unless the person who proposes to .engage in the business has authority from the city council. What matters it that the saloon keeper must also have the consent of at least a majority of the electors who voted at the last preceding general election? Very many of the things authorized by the law to be done by a city council can only be done after petitions are presented, signed by a certain number of the inhabitants or property holders, and such provisions, have never been questioned. Moreover, in some matters relating to local self-government, the council cannot act until al vote of the people of the municipality is had, authorizing them to do so. Such laws have never been doubted. It is unnecessary to cite these various enactments. They are familiar, not only to the profession* but to’ nearly every- layman as well. ’
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We have, as best we may, discussed and disposed of every objection urged to the constitutionality of the act in question; and, while we are aware that there are some respectable authorities bolding to a different rule from- that announced in this opinion, yet we think that they are founded on a mistaken assumption as to the law, and fail to recognize proper distinctions between the delegation of power to make a law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, ■to be exercised under and in pursuance of the law. We are thoroughly convinced that, all questions raised on this appeal have heretofore been determined by this court, or that, at least, principles have been announced which, when applied to the facts of this case, determine against all of the objections urged against the validity of the act. It is manifest, too, from the citations we have made, that the great weight of authority in this country supports our views. We have no doubt about the constitutionality of the law. But, had we any question about it, it would be our duty to resolve our doubts in favor of sustaining the act. With the policy or expediency of this enactment, we have nothing m do. This is solely a question for the legislature, which has. seen fit to place it upon the statute books; and to it must we look for its repeal, if it proves inexpedient. We grant that statements have been made in some of the earlier opinions of this court somewhat at variance with ‘the views herein expressed. But we think a careful examination of these cases will disclose that there is no real conflict. From what has been said, it follows that the judgment and decree of the district court is. affirmed.
Dissenting Opinion
(dissenting). — I. I am unable to concur in the opinion of tbe majority, in so. far as it holds that the act in question is not a delegation of powers of the legislature to the people, to repeal and enact laws, and therefore not unconstitutional. I am deeply impressed with the duty devolving upon courts, in passing upon the validity of statutes, to’ uphold them, if possible. I agree that the. statutes should not be set aside save when they are palpably in violation of either the letter of the constitution, or of those underlying fundamental principles upon which our fabric of government rests. In determining the validity of a statute, we cannot consider or give weight to our judgment as to the necessity for, or the propriety or ■expediency of, the legislation in question. It is not for the court to determine what the law should be, and thus, under the guise of judicial judgment, creiate law, but its’ province is to’ declare what is the law. It is unfortunate that the legislation touching a subject which so engrosses the attention of the people, and upon which the convictions, of men are so decided and antagonistic, should afford1 any just reason for questioning its constitutionality. When it is so clearly apparent that the real purpose which the legislators had in mind, in the attempted enactment of this statute, could have been so easily and certainly accomplished by the passage of a proper law, which would have had the force and .effect of a completed act of legislation when it left their hands and had been .approved by the governor, it seems incomprehensible that they should have abdicated their powers as a lawmaking body, and deliberately violated a solemn duty devolved upon them by the constitution of the state. The importance of the question, as well as the wish I have had to reach a conclusion in harmony with my brethren, — a result always desirable, and especially so in a case like this, *22which so deeply affects the well-being of all the people of the state, — has led me to give much time and eonsidatiom to the question presented. After a careful consideration, of the views of the majority and a thorough investigation of the authorities bearing upon the question, I am impressed with the conviction that some of the provisions of the act are clearly in violation of the constitution of the state, and are a direct assault upon the very fundamental principles upon which our form of government is based. I cannot, therefore, either assent to the views of the majority, nor can I content myself without, as briefly as I may, expressing my views touching this question. I shall not set forth in detail the act itself. I shall refer to so much of it as is set out in the opinion of the majority, and hereafter state such other of its provisions as may be necessary to a full understanding of my views. The act, as will be seen, undertakes to tax the business of selling intoxicating liquors, through the person of the seller, the owner of the property where the business is carried on, and also the property in which the business is conducted. It then provides, in section 16, that “nothing in this act contained, shall be in any way construed to mean that the business of the sale of intoxicating liquors is in any way legalized, nor is the same to be construed in any manner or form as a license, nor shall the assessment or payment or any tax for the sale of liquors, as aforesaid, protect the wrong doer from any penalty now provided by law, except that on conditions hereinafter provided certain penalties may be suspended.” After thus announcing that they were not legalizing the business, and not conferring authority to license the traffic, they proceed by sections 17 and 18 of the act, to make provision for legalizing the business and exacting a license, at the option of a certain number of legal voters, and of the city council in cities, and boards *23of trustees in incorporated towns, upon the performance of certain acts by the one desiring to sell, and of certain other citizens. The act also provides for the suspension of penalties of the existing prohibitory laws, and bars all proceedings under such laws, upon the petition and action heretofore referred to being procured and had. Section 19 of the act provides that the bar to proceedings under the existing law, created by the performance of the acts before mentioned, shall cease to operate in favor of the party whenever he violates the conditions, at the option of the city council, or trustees of a town, or whenever it is so petitioned by a majority of the citizens. In all such cases the liquor seller becomes liable to all of the penalties of the prohibitory law. But in no case, according to the loording of the act, are proceedings under the prohibitory law suspended or barred, or penalties suspended, unless the requisite number of legal voters petition therefor. The ingenuity of the lawmaking power has often been severely taxed in the preparation and promulgation of prohibitory licenses, tax, and local-option liquor laws; but it is safe to say that the act in controversy is, in many of its features, unlike anything to’ be found in any statute relating to intoxicating liquors.
II. It is a rule everywhere asserted, and nowhere denied, that the power of the legislature to enact and repeal laws cannot be delegated to the people; that the people, in their primary capacity, have no power to either enact or repeal a law. State v. Wilcox, 42 Conn. 369; Ex parte Wall, 48 Cal. 279; Locke’s Appeal, 72 Pa. St. 491; Fell v. State, 42 Md. 90; Parker v. Commonwealth, 6 Pa. St. 518; Maize v. State, 4 Ind. 342; People v. Collins, 3 Mich. 343; State v. Copeland, 3 R. I. 35; Rice v. Foster, 4 Har. (Del.) 479; State v. Young, 29 Minn. 474, 9 N. W. Rep. 737; State v. Swisher, 17 Tex. 441; People *24v. Stout, 28 Barb. 358; State v. Bond, 93 Mo. 606, 6 S. W. Rep. 469; Feek v. Township Board (Mich.) 47 N. W. Rep. 40; Santo v. State, 2 Iowa, 202; State v. Geebrick, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; State v. Weir 33 Iowa, 134; State v. King, 37 Iowa, 467. This doctrine is fully recognized in, the majority opinion. The contention arises over the question as to what, in a given case, constitutes such a prohibited delegation of power. The argument of the majority is based upon the claim that the act being complete in form, and so framed that its provisions may be taken advantage of by the people of any portion of the state, it is not dependent upon the action of the people for its validity, and that, if it operate to repeal the prohibitory laws, such repeal is not dependent upon the action of the people, but is accomplished by the law itself. In my judgment, not one of these claims is well founded. It must be1 understood that I am not now dealing with, the taxing features of this so-called law, but with that part of it which undertakes to suspend’ — or, more properly speaking, repeal — the provisions of the prohibitory liquor laws upon petition of a certain number of citizens and the action of the council or board of trustees, as the case may be, which may be had only after such a petition has been filed, and after the performance of certain other acts provided fox’, whereby the sale of liquor is licensed and attempted to be legalized, and the further provisions of which act undertake, upon the said petition of citizens and other acts done thereunder, to revive or reinstate such prohibitory laws in all respects as if the same had never been suspended or repealed.
I maintain that, in so far as the act in question relates to those matters* it is of no’ more efficiency than a blank sheet of paper. It is not a legislativé act. It is, at most, a mere proposition, submitted by the legislature to the people, of which they may avail them*25selves at their will, by the petition, thereby giving force and vitality to the act True, in form it is an act of the legislature; that is, it bears the signature and approval of the proper officers, — and in that sense only can it be said to be a completed act. The same thing may be said of any other act which may nevertheless be in fact in plain violation of the constitutional provisions. In arriving at a determination of this question, we may be aidéd by a consideration of what constitute some of the essentials of a law. Law is a rule of action prescribed by the supreme power of a state, commanding what is right and prohibiting what is wrong. Hence, the act, to be valid, must be more than a mere proposition submitted to’ the people. It must command something. As is said in case of State v. Geebrick, 5 Iowa, 497: “The legislative power must command. It must not leave to the people the choice to obey or not te> obey -its requirements. It is not a law- enacted according to the requirements of the constitution, if there is left to the action and choice of the people upon whom it is to operate the determination of a question which may-result in a want of uniformity in the operation of a laiw of a general nature.” True it is, by this act the power is granted to the citizens to petition, but it is a mere privilege or power, not a command. Hence, in this respect, the act lacks this essential element of a law. The grant of power is to the people, by petition, in conjunction with the act of the council or board of trustees, to put in force certain proposed legislation, and repeal existing statutes, in cities and towns, when they may elect so to do; and the election of the people, thus expressed, is, by the act, made an absolute prerequisite to the change in the law. The suspension or repeal of the existing prohibitory liquor law’s, and the putting in force, in their stead, of a license law, and the protection of the liquor seller from the provisions and penalties of *26such prohibitory laws, are all based solely upon, and initiated by, the petition of the requisite number of citizens in a certain community. They, and they alone, by the petition, make it possible for the city council or board of trustees to create a rule and penalty. In the absence of the petition, there is no rule and no penalty as the provisions of the act in that respect command nothing, and do not become vitalized into life until the requisite petition‘is presented, and certain other steps are taken thereunder. No rule of law and no penalty is created, then, until the people have petitioned, and not then unless the council or board of trustees act in furtherance of the wishes of the petitioners. What, then, gives eff ect and vitality to these provisions of the act? Manifestly, not the law itself, but the petition and the action had thereunder. The so-called legislative act is, in these respects, lifeless, ineffective, without force in and of itself, but life is breathed into the act by the petition and the act® thereunder. The old law is suspended or repealed, not by the act of the legislature, for we must remember that that act commands nothing, requires no> act of the people to be done, but the suspension and repeal of existing laws is accomplished as I have stated. Not only is the old law thus repealed, and the new order of things established; but the law thus enacted by the people themselves may be set aside without the intervention of the legislature, and the prohibitory law re-established by petition of the people, or by act of the council. So the prohibitory law may be repealed in one locality, and remain undisturbed in another locality, and yet, in the face of all these facts, it is contended that the law, ais an act of legislation, is effective in and of itself. If the petition and acts had thereunder do’ not operate to suspend or repeal the prohibitory law; if such action does not give life and efficacy to an enactment which, in the absence *27of these acts, is a statute in form only, haying no force, —why is it that the act in question may be in force in one locality and lifeless in another? Clearly, then,- it is the petition and ‘the acts thereunder which repeal the prohibitory law. The legislature has not commanded the repeal of the la w, but has said to the people of the several communities, By your petition and certain other action shall the law be repealed. The law-making power remits to the people the task of repealing the law, and thereby invests them with its own legislative authority, — delegates it to them, abrogates its prerogative, and undertakes to confer it on a body not authorized by the constitution to make laws. It is contended that the act itself works the repeal of the old law. How can that be when, as we have seen, the act commands nothing, — not even a vote. It is, in that respect, not mandatory, but a grant to petition for a law. The theory may be plausible, but, in my judgment, is not tenable. As is well said in the dissenting opinion of Reed, J., va. State v. Circuit Court of Gloucester Co., 50 N. J. Law, 585, 15 Atl. Rep. 287: “If this statute, as I have already remarked, delegated to the people the power to do that which is legislative, then, it does not matter how perfect its form, it is void. * * * The assumption that the vote is the result of the law, and not the law of the vote, is only a half truth. The vote is the result of the law and the law is the result of the vote. Unless a scheme framed by the legislature had provided for a vote, of course, there would be no vote. So the votes grow out of the statute. But because the vote is in this sense, a part of the scheme of legislation, it is no less true that all the people, as a legislative body of last resort, is intrusted with the determination of the final question, — law or no law. It adds to those bodies to which the constitution confides the approval of law another body. It makes the *28validity of the framework which the legislature has drafted to depend upon another mind than the legislature itself. Both the legislature and the people concur in the work, but because each contributed to the perfection of the statute makes, none the less the act of each, legislation.”
The argument of the majority opinion amounts to this: That, while the legislature cannot pass a law to take effect upon its approval by a vote of the people, it may pass a law whereby the people of the various localities- of the state may, by vote or petition, avail themselves of its provisions. To my mind, the latter scheme is no less an invasion of the provisions of the constitution than is the former, for, it must be admitted, in the latter case the act has no force and effect until its proposed benefits are accepted in the manner provided herein. As is said by Morse, J., in Feek v. Township Board (Mich.), 47 N. W. Rep. 42: “I have no appreciation of such an argument. It amounts to this, and this only: The legislature says to the people, ‘Do you want this law or not? If you want it, you can have it. If yo-u don’t want it, you can’t have it. Now, meet at your polling places, and vote upon it, and make your choice.’ If, in such a case, the people do not, by an election, make the act a law, or reject it, then I am obtuse. This would be a convenient thing for a legislature wishing to shirk their responsibility, — to submit all their law-s to the vote of the people, for if they can submit one they can all; but it is not the way provided by our constitution for the enactment of laws.” Acts conferring powers upon municipalities are upheld because of the fact that they are complete and valid laws when they come from the hand® of the legislature, and the happening of the contingency or event which furnishes the occasion for the exercise of the power gives no additional efficacy to the law itself. Touching *29this matter, I quote approvingly the language of Wagner, J., in Lammert v. Lidwell, 62 Mo. 192: “It derives, its whole vigor and vitality from the exercise of the legislative will, ‘and not from the vote of the people. * * * It must operate by virtue of the legislative authority, and not depend upon popular action or the people’s suffrages for its vitality.” And Sherwood, J.,. in State v. Pond, 93 Mo. 606, 6 S. W. Rep. 489, says: “In certain classes of cases * * * relating to mere local or municipal objects, it is perfectly competent for the legislature, by a law complete in itself, — one announcing penalties for its violation, — to submit to the people of certain localities, to determine by their votes whether some .small minor regulation, incident to, but not necessary to, the existence of the law itself, shall be adopted. But if the law is not complete, if it has no self-enforcing penalty, when it leaves the hands of the legislature; if it is a mere proposal to the people of certain localities to determine whether certain printed matter which appears on the statute books shall become a law or no, — then such a proposal is a clear delegation of legislative power, and for that reason unconstitutional.” It is said that the legislature may pass a law to take effect upon contingency. That is true. In that respect I approve of the rule laid down by Reed, J., in State v. Circuit Court of Gloucester Co., supra, where he saysr. “The difference between the statutes based upon a valid contingency and those based upon a contingency void as a delegation of legislative power, may, I think, be clearly stated. The first is a statute ordaining a fixed rule of - civil conduct, applying to a certain prescribed condition of fact, which may arise in futuro. The last is a statute which leaves to the people the power to say whether, when such a rule has been enacted, it shall ever become operative. One leaves the rule a law ready to operate upon *30the subj ect-matter whenever it arises. The other leaves it to another to say whether the rule shall ever become a law.” It would be an interesting study to review and comment upon very many eases touching what is a delegation of legislative power, but the length of this opinion forbids. I can only say that the rule I contend for finds abundant support in the following cases (I do- not claim that they are all exactly in point, under a state of facts such as we have in the case at bar, but in principle they recognize the doctrine upon which this dissent is based): Parker v. Com., 6 Pa. St. 507; Maize v. State, 4 Ind. 342; Ex parte Wall, 48 Cal. 279; People v. Collins, 3 Mich. 343; Rice v. Foster, 4 Har. (Del.), 479; Parto v. Himrod, 8 N. Y. 483; State v. Swisher, 17 Tex. 441; People v. Stout, 23 Barb. 356; State v. Young, 29 Minn. 474, 9 N. W. Rep. 737; State v. Copeland, 3 R. I. 35; Fell v. State, 42 Md. 90; Locke’s Appeal, 72 Pa. St. 491 (dissenting opinions of Reed and Sharswood, JJ.); Santo v. State, 2 Iowa, 203; State v. Beneke, 9 Iowa, 202; Geebrick v. State, 5 Iowa, 493; State v. Weir, 33 Iowa, 134; and many other cases. It is said in the majority opinion that the first three cases cited above have been overruled, or otherwise weakened as authority. This is a misapprehension, as will be seen from the able dissenting opinion of Sherwood, J., in State v. Pond, supra. Another thing worthy of mention in this connection is that the opinions m-uch reli-ed upon in the majority opinion, in the cases of State v. Circuit Court of Gloucester Co., State v. Pond, and Feek v. Township Board, were rendered by divided courts, there being able dissenting opinions in each of these cases.
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